UNITED STATES DISTRICT COURT

EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

EDWARD VERNE MCKENZIE, JR.,

Plaintiff, Civil Action No.: 14-14856

 Honorable Arthur J. Tarnow

v. Magistrate Judge Elizabeth A. Stafford

 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security,

 

Defendant. 

__________________________________/

REPORT AND RECOMMENDATION

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [R. 12, 13]

Plaintiff Edward McKenzie appeals a final decision of Defendant 

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

for Supplemental Security Income (“SSI”) under the Social Security Act (the 

“Act”). Both parties have filed summary judgment motions, referred to this 

Court for a Report and Recommendation pursuant to 28 U.S.C. § 

636(b)(1)(B). The Court finds that, while the Administrative Law Judge’s 

(“ALJ”) decision has several technical faults, remand to correct them would 

not result in a different outcome for McKenzie, and thus remand would be

simply a formality. For these reasons, the Court RECOMMENDS that:

• the Commissioner’s motion [R. 13] be GRANTED; 

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• McKenzie’s motion [R. 12] be DENIED; and,

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

four of 42 U.S.C. § 405(g).

I. BACKGROUND

A. Claimant’s Background and Claimed Disabilities

McKenzie was thirty-five years old at the time of his application, who 

had previously worked as a general laborer, and specifically as a packer. 

He claimed disability as a result of paranoid schizophrenia. 

B. Procedural History

McKenzie had filed a previous set of applications for disability 

insurance benefits and SSI, which were denied at the administrative 

hearing level on October 8, 2010. [R. 10-3, Tr. 63-76]. The Appeals 

Council denied review, rendering the ALJ’s decision final. [Id., Tr. 77-80]. 

On November 15, 2011, McKenzie filed the instant application for SSI, 

alleging disability as of October 9, 2010. [R. 10-5, Tr. 216-21]. The claim 

was denied initially, and McKenzie filed a timely request for an 

administrative hearing, held on August 22, 2013, at which both he and a 

vocational expert (“VE”) testified. [R. 10-2, Tr. 29-45; R. 10-4, Tr. 93-96, 

99-109]. In a September 12, 2013 written decision, the ALJ found 

McKenzie not disabled. [R. 10-2, Tr. 10-28]. The Appeals Council denied 

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review, making the ALJ’s decision the final decision of the Commissioner. 

[Id., Tr. 1-6]. McKenzie timely filed for judicial review. [R. 1]. 

C. The ALJ’s Application of the Disability Framework

SSI is available for those who have a “disability.” See Colvin v. 

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

engage in any substantial gainful activity (“SGA”) by reason of any 

medically determinable physical or mental impairment which can be 

expected to result in death or which has lasted or can be expected to last 

for a continuous period of not less than 12 months.” 42 U.S.C. §§ 

423(d)(1)(A), 1382c(a)(3)(A).

The Commissioner determines whether an applicant is disabled by 

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

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

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

1

 Second, if the claimant has 

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

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

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

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

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

respectively, list the same five-step analysis.

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

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

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

Commissioner considers its assessment of the claimant’s residual 

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

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

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

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

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

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

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

Applying this framework, the ALJ concluded that McKenzie was not 

disabled. At step one, he determined that McKenzie had not engaged in 

SGA since his application date.3

 [R. 10-2, Tr. 15]. At step two, the ALJ 

found one severe impairment: paranoid schizophrenia. [Id.]. At step three, 

he determined that this impairment did not meet or medically equal a listed 

impairment, as the evidence only showed that McKenzie suffered from mild 

limitations in activities of daily living and moderate difficulties with social 

functioning and in maintaining concentration, persistence and pace, with no 

episodes of decompensation. [Id., Tr. 15-17]. 

 3 See Bogle v. Sullivan, 998 F.2d 342, 346 n.2 (6th Cir. 1993) (“A Title XVI 

application is effective for the month in which an individual is under a 

disability, but in no case earlier than the month in which the application is 

filed” (citing 42 U.S.C. § 1382(c)(6)). 

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Next, the ALJ assessed McKenzie’s residual functional capacity 

(“RFC”), finding him capable of a full range of unskilled work at all 

exertional levels, with the additional limitations that the work involve only 

routine production and stress, simple job assignments, occasional contact 

with the public and co-workers, and little or no changes in the work setting. 

[Id., Tr. 17]. At step four, the ALJ determined, with the assistance of VE 

testimony, that this RFC permitted McKenzie to return to his past work as a

car wash attendant and a products assembler, and thus he was not 

disabled. [R. 21-22]. The ALJ then went on to make an alternative step 

five finding not relevant here. [R. 22-23]. 

II. STANDARD OF REVIEW

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

whether the Commissioner’s decision is supported by substantial evidence 

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

of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014). Substantial evidence is 

“more than a scintilla of evidence but less than a preponderance; it is such 

relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 

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

evidence in the record below may be considered when determining 

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

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

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

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

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

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

citations omitted). 

The Commissioner must also adhere to its own procedures, but 

failure to do so constitutes only harmless error unless the claimant has 

been prejudiced or deprived of substantial rights. Rabbers v. Comm’r of 

Soc. Sec., 582 F.3d 647, 654 (6th Cir. 2009). An ALJ’s failure to use an 

“adjudicatory tool” that does not change the outcome of the decision is 

harmless. Id. at 655-56. 

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

determination that McKenzie is not disabled is supported by substantial 

evidence.

III. ANALYSIS

McKenzie argues that the ALJ failed to properly apply the standard 

set out in Acquiescence Ruling (“AR”) 98-3(6) and Dennard v. Sec’y of 

Health and Human Servs., 907 F.2d 598 (6th Cir. 1990), in characterizing 

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McKenzie’s past work. McKenzie further argues that the ALJ’s alternate 

step five finding is faulty as the hypothetical posed to the VE did not 

incorporate the non-exertional limitations outlined in the RFC. The Court 

finds that, although the ALJ made mistakes at step four, the errors were 

harmless and McKenzie’s step five arguments are rendered moot.

AR 98-3(6) requires that:

where the final decision of SSA after a hearing on a prior 

disability claim contains a finding of the demands of a 

claimant’s past relevant work, SSA may not make a different 

finding in adjudicating a subsequent disability claim with an 

unadjudicated period arising under the same title of the Act as 

the prior claim unless new and additional evidence or changed 

circumstances provide a basis for a different finding. 

SSAR 98-3(6), 1998 SSR LEXIS 4, at *5-6, 1998 WL 283901 (June 1,1998)

(citing generally Dennard, 907 F.2d 598). 

At the prior hearing, the ALJ elicited testimony from McKenzie and 

the VE about the nature of his past relevant work, which was apparently 

based on a report McKenzie filed characterizing the nature of that work. 

[R. 10-2, Tr. 50-53, 60]. McKenzie testified that the job he worked the 

longest was for a company called Valley Industries, from 1999-2001, which

involved packing things in boxes and lifting no more than fifteen pounds. 

[Id., Tr. 51-52]. The VE defined this position as a “packer” – a medium,

unskilled occupation – and testified that it was the only job in McKenzie’s 

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work history that qualified as SGA. [Id., Tr. 60]. 

The ALJ then asked the VE whether a hypothetical claimant who had 

no exertional limitations but was limited to jobs involving only routine 

production and stress, simple assignments, occasional contact with the 

public and co-workers, and few or no changes in the work setting could 

perform any of McKenzie’s past work. [Id., Tr. 60-61]. The VE testified that 

such a claimant could perform McKenzie’s past work as a packer. [Id., Tr. 

61]. Although the ALJ’s hypothetical question imposed no exertional 

limitations, his written decision limited McKenzie to no more than medium 

work, but included all of the same non-exertional limitations he posed to the 

VE. [R. 10-3, Tr. 70]. The ALJ ultimately found McKenzie could return to 

his past unskilled work as a packer. [Id., Tr. 72]. 

At the present hearing, the ALJ against asked the VE to characterize 

McKenzie’s past work. [R. 10-2, Tr. 42-43]. In doing so, the VE referred to 

a work history report that McKenzie had completed. [Id.; R. 10-6, Tr. 253-

61]. On that report, McKenzie did not specifically list the packing position 

he held in 1999 through 2001. [R. 10-6, Tr. 253]. Instead, he listed his 

work from 1995 through 2006 as “laborer” for various unidentified 

employers, involving lifting of no more than twenty pounds. [Id., Tr. 253, 

256]. He also listed two other occupations: dishwasher, from 1992-1997 

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and car dryer from 1995-1998. [Id., Tr. 253]. 

The VE testified that McKenzie’s past work consisted of a car wash 

dryer and a production assembler. [R. 10-2, Tr. 42]. The ALJ specifically 

asked the VE whether the assembly position was the same as the packer 

position from 1999 to 2001, and the VE testified, “I don’t have those dates. 

I have ’92 to ’97 as a dishwasher and then ’95 to ’06, laborer and various. 

20 pounds max. So I put in, I labeled that as a production assembler.” 

[Id.]. She characterized the exertional limitation of production assembler as 

“light.” [Id.]. 

The ALJ then asked whether a claimant matching McKenzie’s profile, 

who could perform work at all exertional limitations but who had the same 

non-exertional limitations found in the ALJ’s previous decision, could 

perform his past relevant work. [Id., Tr. 42-43]. The ALJ stated that such 

an individual could perform work both as a car dryer and a production 

assembler. [Id., Tr. 43]. The ALJ relied on this testimony to find that 

McKenzie was not disabled at step four of the process. [Id., Tr. 21-22]. 

The Court acknowledges that there are several problems with the 

ALJ’s analysis and conclusions. First, AR 98-3(6) and Dennard require 

that, in the absence of a finding of additional evidence or changed 

circumstances, the ALJ was bound to his prior decision’s finding that 

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McKenzie’s only SGA was as a packer, which was medium, unskilled work. 

Further, McKenzie is correct that there is little evidence that he worked as a 

production assembler, and thus the characterization of his past work in this 

way is suspect. Finally, the ALJ’s RFC permitting work at all exertional 

levels contravenes the requirements of AR 98-4(6)4 and Drummond v. 

Comm’r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997), because it contradicts 

his own conclusions that no substantial evidence or changed 

circumstances existed to alter his prior RFC, which had limited McKenzie to 

medium work or less.

However, even if the Court were to remand this case back for 

correction of these errors, the outcome would remain the same, and thus 

the errors are harmless. See Rabbers, 582 F.3d at 654-55. But for the 

RFC’s differing exertional limitations, the ALJ specifically found that there 

was no evidence that McKenzie’s RFC had significantly changed since the 

earlier hearing. [R. 10-2, Tr. 17; R. 10-3, Tr. 70]. Thus, if the ALJ were 

required to adhere to his prior decision by characterizing McKenzie’s work 

as a packer at the medium unskilled level and modifying his RFC to limit 

McKenzie only to medium work with the same non-exertional limitations, 

the VE again would testify that such a hypothetical claimant could perform 

 4 1998 SSR LEXIS 5, 1998 WL 283902 (June 1, 1998). 

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his past work. [R. 10-2, Tr. 60-61]. Thus, remand in this instance “would 

be an idle and useless formality.” Kobetic v. Comm’r of Soc. Sec., 114 

Fed. Appx. 171, 173 (6th Cir. 2004) (quoting NLRB v. Wyman-Gordon Co., 

394 U.S. 759, 766 n.6 (1969) (noting that in such instances courts are not 

required to “convert judicial review of agency action into a ping-pong 

game.”)); see also Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)

(“No principle of administrative law or common sense requires us to 

remand a case in quest of a perfect opinion unless there is reason to 

believe that remand might lead to a different result.” (citations omitted)). 

Because the ALJ’s ultimate conclusion at step four stands despite the 

ALJ’s errors, the Court does not address McKenzie’s alternate step five 

argument. Further, a review of the record convinces the Court that the 

decision is otherwise supported by substantial evidence. 

IV. CONCLUSION

Because the ALJ committed no more than harmless error at step 

four, and his decision is otherwise supported by substantial evidence of 

record, the Court RECOMMENDS that McKenzie’s Motion for Summary 

Judgment [R. 12] be DENIED, the Commissioner’s Motion [R. 13] be 

GRANTED and this case be AFFIRMED.

s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

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United States Magistrate Judge

Dated: November 30, 2015

NOTICE TO THE PARTIES REGARDING OBJECTIONS

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

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

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

72(b)(2). Failure to file specific objections constitutes a waiver of any 

further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. 

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

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

HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers 

Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). A copy of any objection 

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

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

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

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

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

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

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

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

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

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

may rule without awaiting the response.

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

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

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

disclosed on the Notice of Electronic Filing on November 30, 2015.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

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