UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SHELIA ANNE HARRIS,

CASE NO. 14-cv-14508

Plaintiff,

DISTRICT JUDGE MATTHEW F. LEITMAN

v. MAGISTRATE JUDGE PATRICIA T. MORRIS

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

___________________________/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION ON CROSS 

MOTIONS FOR SUMMARY JUDGMENT (Docs. 11, 12)

I. RECOMMENDATION

In light of the entire record in this case, I suggest that substantial evidence 

supports the Commissioner’s determination that Harris is not disabled. Accordingly, IT 

IS RECOMMENDED that Harris’ Motion for Summary Judgment (Doc. 11) be 

DENIED and that the Commissioner’s Motion for Summary Judgment (Doc. 12) be 

GRANTED.

II. REPORT

A. Introduction and Procedural History

Pursuant to 28 U.S.C. § 636(b)(1)(B), E.D. Mich. LR 72.1(b)(3), and by Notice of 

Reference, this case was referred to this magistrate judge for the purpose of reviewing a 

final decision by the Commissioner of Social Security (“Commissioner”) denying 

Plaintiff’s claims for the Disability Insurance Benefits (“DIB”) program of Title II, 42 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 1 of 35 Pg ID 554
2

U.S.C. § 401 et seq. (Doc. 5; Tr. 1-3). The matter is currently before the Court on crossmotions for summary judgment. (Docs. 11, 12).

Plaintiff Shelia Harris was forty-eight years old on her date last insured, June 30, 

2011, alleging that she became disabled on September 20, 2010. (Tr. 187). This 

application was denied on December 5, 2011. (Tr. 87). Harris requested a hearing before 

an Administrative Law Judge (“ALJ”), which took place before ALJ Patrick MacLean on

December 18, 2012. (Tr. 50-86). Harris, who was represented by attorney Bethany 

Versical, testified, as did vocational expert (“VE”) Dr. Lois Brooks. (Id.). On July 19, 

2013, a second hearing was held before the same ALJ, in which Harris again testified, 

represented by Ms. Versical. (Tr. 35-49). On August 9, 2013, the ALJ issued a written 

decision in which he found Harris not disabled. (Tr. 19-30). On December 2, 2014, the 

Appeals Council denied review. (Tr. 1-3). Harris filed for judicial review of that final 

decision on January 6, 2015. (Doc. 1). 

B. Standard of Review

The district court has jurisdiction to review the Commissioner’s final 

administrative decision pursuant to 42 U.S.C. § 405(g). The district court’s review is 

restricted solely to determining whether the “Commissioner has failed to apply the 

correct legal standard or has made findings of fact unsupported by substantial evidence in 

the record.” Sullivan v. Comm’r of Soc. Sec., 595 F. App’x 502, 506 (6th Cir. 2014) 

(internal citations omitted). 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 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 2 of 35 Pg ID 555
3

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

(6th Cir. 2007) (internal quotations omitted). 

The Court must examine the administrative record as a whole, and may consider 

any evidence in the record, regardless of whether it has been cited by the ALJ. See 

Walker v. Secretary of Health and Human Services, 884 F.2d 241, 245 (6th Cir. 1989). 

The Court will not “try the case de novo, nor resolve conflicts in the evidence, nor decide 

questions of credibility.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 

(6th Cir. 1994). 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.” Id. at 286 (internal 

citations omitted).

C. Framework for Disability Determinations

Under the Act, “DIB and SSI are available only for those who have a ‘disability.’”

Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). “Disability” means the inability

to engage in any substantial gainful activity by reason of any 

medically determinable physical or mental impairment which 

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

expected to last for a continuous period of not less than 

[twelve] months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 20 C.F.R. § 416.905(a) (SSI). The 

Commissioner’s regulations provide that disability is to be determined through the 

application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in substantial 

gainful activity, benefits are denied without further analysis.

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 3 of 35 Pg ID 556
4

Step Two: If the claimant does not have a severe impairment 

or combination of impairments that “significantly limits . . . 

physical or mental ability to do basic work activities,” benefits 

are denied without further analysis.

Step Three: If the claimant is not performing substantial 

gainful activity, has a severe impairment that is expected to 

last for at least twelve months, and the severe impairment 

meets or equals one of the impairments listed in the 

regulations, the claimant is conclusively presumed to be 

disabled regardless of age, education or work experience.

Step Four: If the claimant is able to perform his or her past 

relevant work, benefits are denied without further analysis.

Step Five: Even if the claimant is unable to perform his or her 

past relevant work, if other work exists in the national 

economy that plaintiff can perform, in view of his or her age, 

education, and work experience, benefits are denied.

20 C.F.R. §§ 404.1520, 416.920. See also Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 

534 (6th Cir. 2001). “Through step four, the claimant bears the burden of proving the 

existence and severity of limitations caused by [his or] her impairments and the fact that 

she is precluded from performing [his or] her past relevant work.” Jones v. Comm’r of 

Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). The burden transfers to the Commissioner if 

the analysis reaches the fifth step without a finding that the claimant is not disabled. 

Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006). At the fifth step, the 

Commissioner is required to show that “other jobs in significant numbers exist in the 

national economy that [the claimant] could perform given [his or] her RFC [residual 

functional capacity] and considering relevant vocational factors.” Rogers, 486 F.3d at 241 

(citing 20 C.F.R. §§ 416.920(a)(4)(v), (g)).

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 4 of 35 Pg ID 557
5

D. ALJ Findings

Following the five-step sequential analysis, the ALJ found Harris not disabled 

under the Act. (Tr. 30). The ALJ found at Step One that Harris did not engage in 

substantial gainful between her alleged onset date, September 20, 2011, and her date last 

insured, June 30, 2011. (Tr. 24). At Step Two, the ALJ concluded that Harris had the 

following severe impairments: “bipolar disorder; left knee saphenous nerve injury; and 

obesity.” (Tr. 24-25). At Step Three, the ALJ found that Harris’ combination of 

impairments did not meet or equal one of the listings in the regulations. (Tr. 25). The ALJ 

then found that Harris had the residual functional capacity (“RFC”) to perform sedentary

work, except that Harris

must avoid all climbing ladders, ropes, and scaffolds. The 

claimant is able to perform occasional climbing of ramps/stairs, 

balancing, stooping, crouching, kneeling, and crawling. The 

claimant must avoid concentrated exposure to moving 

machinery and unprotected heights. The work must be limited 

to simple, routine, and repetitive tasks in a low-stress work 

environment with only occasional decision-making required 

and only occasional changes in the work setting. The claimant 

is able to have occasional interaction with the public and with 

co-workers. 

(Tr. 26-28). At Step Four, the ALJ noted that Harris could not perform any past relevant 

work. (Tr. 28). At Step Five, the ALJ found that a significant number of jobs exist which 

Harris could perform despite her limitations. (Tr. 29). As a result, the ALJ found Harris

not disabled under the Act. (Tr. 30). 

E. Administrative Record

1. Medical Evidence

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 5 of 35 Pg ID 558
6

Harris argues that the ALJ erred in the evaluation of her mental health, but not her 

physical health. (Doc. 11 at 12-20). The Court will thus examine Harris’ mental health 

records in detail, and will endeavor to provide an overview of Harris’ physical health. 

Harris treated with The Guidance Center in 2006. (Tr. 264-88). Large portions of 

these records are difficult to interpret due to poor scanning quality and penmanship. On 

February 5, 2006, Harris overdosed on prescription medication following an argument 

with her boyfriend. (Tr. 264). Harris reported feeling depressed, and described her desire 

to “sleep all day, feelings of guilt, minimal motivation to be awake and do household 

chores, frequent crying, feeling sad, [and] fleeting suicidal ideations.” (Id.). She also 

described a history of depressive symptoms since age twelve, relationship troubles, and 

the abuse of “alcohol and caffeine pills to cope with stressors,” resulting in rapid mood 

changes and anger. (Id.). On March 8, 2006, an unknown psychiatrist performed a 

psychiatric evaluation and assigned a GAF score of 50.

1 (Tr. 279). He or she also found 

that Harris’ memory was fully intact. (Tr. 278). In September 2006 Harris reported that 

she was “doing better.” (Tr. 268-69). From April through September of 2006 Harris it 

was noted that Harris did not suffer from delusions, suicidal or homicidal ideations, and 

reported no side effects from medications. (Tr. 267-75). 

 1 The Global Assessment of Functioning (GAF) is a numeric scale (0 through 100) used 

by mental health clinicians and physicians to rate subjectively the social, occupational, 

and psychological functioning of adults. A GAF score of 41–50 indicates serious 

impairments in social or occupational functioning such as an inability to keep a job. See 

Kornecky v. Comm’r of Soc. Sec., 167 Fed. Appx. 496, 503 (6th Cir. 2006); American 

Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders—Text 

Revision (DSM–IV–TR ) (4th ed. 2000).

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 6 of 35 Pg ID 559
7

On March 4, 2008, Harris visited Henry Ford Health System complaining of a lack 

of motivation and weakness resulting from depression. (Tr. 363). Dr. Yari Campbell 

continued Harris’ prescription of Wellbutrin and added a prescription for Celexa and 

Ambien to help with depression and sleeplessness. (Tr. 364). 

Harris visited Henry Ford Health System numerous times from 2008 through 2012

for treatment of breathing issues, spine pain, arm pain, leg pain, abdominal pain,

dizziness, swollen glands, nail fungus, uterine bleeding, and a variety of other maladies. 

(Tr. 351-432). 

Harris was treated in a hospital emergency ward on July 28, 2010, following a 

motor vehicle crash. (Tr. 442-51). Harris showed generally normal results on physical 

and x-ray examination of the left forearm, left knee, abdomen, brain, and chest. (Id.). An 

x-ray of the cervical spine showed no fracture or subluxation, but revealed [h]ypertrophic 

degenerative disease in the right facet joint at C4/C5 with associated neural foraminal 

narrowing.” (Tr. 447). 

In July 2011, Harris visited the Henry Ford Health System for treatment of knee 

pain, and received an injection. (Tr. 290-95). Her knee pain “responded to [the] 

saphenous nerve block,” and Dr. Jason Schwalb recommended “exhausting all 

conservative management options.” (Tr. 297). 

On July 27, 2011, Harris underwent a new patient evaluation with Dr. Rana Lopa, 

who studied Harris’ psychological maladies. (Tr. 299-303). Harris complained of “mood 

shifts, daily crying spells, irritability, low frustration tolerance, low energy, no motivation 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 7 of 35 Pg ID 560
8

and anhedonia for the last two years” along with concentration and memory problems. 

(Tr. 299). Dr. Lopa also noted that Harris was not fully candid regarding her history of 

chemical dependence, as she denied prior use of cocaine despite the presence of treatment 

records to the contrary. (Id.). Dr. Lopa found that Harris exhibited a guarded attitude, was 

depressed and anxious, had flat affect, moderate concentration and memory difficulties,

and marginal judgment and insight. (Tr. 300). Dr. Lopa assigned a GAF score of 45. (Tr. 

301). 

Harris presented to Dr. Santosh Pillai on July 29, 2011, complaining of being “so 

depressed.” (Tr. 304). She complained of concentration and memory deficits, and 

expressed feelings of sadness, hopelessness, and emptiness. (Id.). Harris suffered no 

memory or concentration problems, but experienced depression and some perceptual 

disturbances, including hearing a “female voice calling her name occasionally.” (Tr. 

306). She visited with Dr. Sarah Zamari on August 4, 2011, for an update wherein she 

was found to suffer from no memory or concentration problems, and was assigned a GAF 

score of 50. (Tr. 307). 

Harris again visited with Dr. Pillai on August 15, 2011, wherein she reported 

sleeping better, experiencing more motivation to “take care [of] herself better,” and began 

cleaning her bedroom and doing laundry. (Tr. 309). Her crying spells were “much 

better,” and she had not experienced any similar episodes since her last meeting with Dr. 

Pillai. (Id.). No memory or concentration issues were noted, and Harris reported being in 

a good mood. (Tr. 310). However, Harris was also noted to “have problems with paranoia 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 8 of 35 Pg ID 561
9

and being around crowds and occasionally hears voices calling her name.” (Id.). On 

August 22, 2011, her GAF score was upgraded to 55.2 (Tr. 311).

On September 21, 2011, Harris reported that “things [were] going well,” and that 

she continued to have the motivation to “get up and do things.” (Tr. 333). She reported 

some “phantom pains” in the left knee and thigh area. (Id.). She was assigned a GAF 

score of 60. (Tr. 335). 

On October 5, 2011, Harris reported that her mood was “mostly good,” her energy 

had been “up and down,” and that she had been “spending time with her family.” (Tr. 

331). She denied any memory problems or concentration problems. (Id.). 

On December 28, 2011, Harris reported feeling unmotivated to leave the house or 

clean her home, and complained of paranoia. (Tr. 328). Dr. Rana assigned a GAF score 

of 60. (Tr. 329). 

On January 18, 2012, Harris’ GAF score was assessed at 45. (Tr. 324). She 

reported being in a “low mood,” with decreased energy and a desire to self-isolate. (Tr. 

326). On February 20, 2012, her GAF score was upgraded to 60. (Tr. 322). On May 2, 

2012, Harris reported that her mood was “pretty good,” she was sleeping well, and had 

not suffered recent panic attacks, but that her energy levels were “sucky.” (Tr. 318). 

On May 16, 2012, social worker Jean-Marie El-Fakhoury concluded that Harris 

exhibited euthymic mood, fair energy, and good sleep, but with “superficial participation 

in therapy.” (Tr. 348). 

 2 A GAF score of 51–60 indicates moderate symptoms (occasional panic attacks) or 

moderate difficulty in social, occupational, or school functioning. DSM–IV–TR 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 9 of 35 Pg ID 562
10

On June 20, 2012, Harris reported increased depression, including the lack of 

desire to “leave her bed much.” (Tr. 345). Social worker El-Fakhoury found that Harris’

speech was slow, her mood depressed, and that she suffered from moderate concentration 

and memory deficits. (Id.). The social worker noted that Harris was not engaged, and had 

low motivation to participate, along with limited insight. (Tr. 347). 

On August 13, 2012, Harris underwent a psychological evaluation with Dr. 

Zamari. (Tr. 341-43). Harris reported sometimes hearing a male voice telling her to 

shoplift, particularly when depressed, along with occasional delusions of being followed. 

(Tr. 341). Harris also described “panic attacks at times characterized by getting shaky, 

sweating under her arms, heart pounding, [and] shortness of breath.” (Id.). Her mood was 

found to be “pretty good,” and she was found to be “forgetful at times,” but she did not 

suffer from any concentration problems. (Tr. 342). Dr. Zamari assigned a GAF score of 

55. (Tr. 343). 

On August 21, 2012, social worker El-Fakhoury drafted a letter verifying that 

Harris “continues to attend therapy, is compliant with medications and makes progress 

towards her behavioral health goals.” (Tr. 338). Harris reported that she was recently 

arrested for the fourth time for shoplifting, and sometimes felt a voice telling her to “pick 

that up.” (Tr. 339). El-Fakhoury noted that Harris had not complained of these voices or 

urges in the past, and that Harris was “unmotivated and disinterested.” (Id.). 

On September 24, 2012, Harris reported being in a low mood and was found to 

“look more disheveled than usual.” (Tr. 336). Social worker El-Fakhoury noted that 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 10 of 35 Pg ID 563
11

Harris had refused a treatment appointment, and “confronted [Harris] regarding her lack 

of participation during sessions and expressed concern regarding her level of 

functioning.” (Tr. 336). Harris had mild concentration and memory problems, but her 

mood was eurythmic. (Id.). Social worker El-Fakhoury found that Harris displayed 

“clinically significant symptoms including a depressed affect, feelings of hopelessness, 

low energy/motivation, occasional auditory hallucinations, chronic paranoid thinking and 

fatigue.” (Id.). 

2. Medical RFC Assessments

On March 19, 2012, Harris underwent a mental RFC assessment with Dr. Elaine 

Tripi. (Tr. 312-13). Harris was found to be moderately limited in the following areas: 

remembering locations and work-like procedures; understanding and remembering short 

and simple instructions; carrying out very short and simple instructions; sustaining 

ordinary routine without special supervision; asking simple questions or requesting 

assistance; maintaining socially appropriate behavior; responding appropriately to 

changes in the work setting; being aware of normal hazards; and setting realistic goals or 

making plans independently of others. (Tr. 312-13). She was found to be markedly 

limited in the following areas: understanding and remembering detailed instructions; 

carrying out detailed instructions; maintaining attention and concentration for extended 

periods; performing activities within a schedule; working in coordination with others or 

proximity to others; completing a normal workweek without interruptions from 

psychologically based symptoms; interacting appropriately with the general public; 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 11 of 35 Pg ID 564
12

accepting instructions and responding to criticism from supervisors; getting along with 

coworkers or peers; and traveling to unfamiliar places or using public transportation. (Tr. 

312-13). Finally, she was found to have no significant limitation in terms of making 

simple work-related decisions. (Tr. 312). Dr. Tripi assigned a GAF score of 46, and 

concluded that because of Harris’ age and lack of progress with therapy, she was “not a 

viable rehabilitation candidate, nor is she capable of sustaining substantial gainful work 

activity.” (Tr. 315). 

On January 22, 2013, Harris visited Monarch Evaluation Services, Inc. for a 

mental status examination under the care of Dr. Hugh Bray. (Tr. 433-41). Dr. Bray noted 

that Harris “arrived by car, alone,” that she “needed no assistance in preparing for the 

appointment,” and that she “primarily provided all of her own data.” (Tr. 433). Harris 

reported that her mental illnesses caused her to “do crazy things like shoplift and have 

sex with different people,” and that she had suffered such symptoms for about ten years. 

(Id.). Harris further asserted that she “mostly stay[s] in the bed unless [she] absolutely 

ha[s] to do something,” and watches television or sleeps rather than interacting with 

others. (Id.). When asked what prevents her from working, she stated that she would 

“miss too many days” because, apparently in reference to her depression, “some days 

[are] ok, other days [are] not.” (Tr. 434). She reported having fair relations with her 

family, neighbors, co-workers, employers, and the examining physician Dr. Bray, but had 

good relationships with friends. (Tr. 435). In the past, she enjoyed playing Farmville on 

the computer, but at the time of the examination her only reported interest was watching 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 12 of 35 Pg ID 565
13

television. (Id.). Regarding personal care, Harris stated that she “wash[es] up,” but had 

not had a bath or shower in eight to nine months, that she performed light housekeeping, 

cooked simple meals, went shopping, cashed checks, drove her car, watched television, 

ran errands, and made appointments. (Tr. 436). Dr. Bray noted that Harris exhibited

adequate contact with reality, had diminished self-esteem, no unusual or bizarre 

behaviors, appropriate involvement with the interview, did not exaggerate or minimize 

symptoms, showed adequate insight and judgment, and was cooperative and responsive,

including maintaining sufficient eye contact. (Id.). Harris denied delusions, but reported 

seeing and hearing “shadows” that appear while she is lying down in her room. (Id.). Dr. 

Bray found her to be distant and withdrawn, with an apathetic mood. (Id.). Tests of 

Harris’ mental state showed normal results in terms of memory, mental capacity, 

sensorium, bank of information, abstract thinking, similarities and differences, and 

judgment. (Tr. 437). This included the ability to name three objects three minutes after 

they were removed from her vision, name five large cities, recall the date, and interpret 

sayings. (Id.). Dr. Bray found that Harris’ concentration, attention, persistence, and effort 

were average on the day of testing. (Id.). He diagnosed schizoaffective disorder, mood 

disorder, and rendered a GAF score of 60. (Tr. 437-38). Dr. Bray’s prognosis was fair to 

guarded. (Tr. 438). He found that Harris’ “mental ability to relate to others, including 

fellow workers and supervisors” was moderately impaired, that her ability to understand, 

remember, and carry out tasks was mildly impaired, that Harris “could handle more 

complex tasks,” and that “[d]ifficulty in performing multiple step tasks is likely to be 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 13 of 35 Pg ID 566
14

minimal,” that her ability to maintain attention, concentration, pace, and effort was mildly 

impaired, and that Harris’ ability to “withstand stress and pressure associated with day to 

day work activities” was mildly impaired. (Id.). Finally, Dr. Bray asserted that none of 

Harris’ “other capabilities” were affected by her impairment. (Tr. 440). 

3. Application Reports and Administrative Hearing

a. Harris’ Function Report

Harris completed a function report on September 16, 2011. (Tr. 214-21). There, 

Harris asserted that she is unable to work as a result of “Bipolar Disorder, depression, 

PTSD from an abusive childhood and extreme paranoia” in addition to “breakdowns,” 

depression and suicidal thoughts, sleepiness, and headaches. (Tr. 214). Harris reported 

that she spends her days either pacing around due to restlessness, or sleeping due to 

depression. (Tr. 215). She asserted that she experiences pain, panic attacks, and anxiety, 

which sometimes interrupt her sleep. (Id.). In terms of personal care, Harris reported that 

her “depression episodes” sometimes limit her ability to bathe, feed herself, shave, and 

perform other care activities. (Id.). She sometimes needs a reminder to get out of bed or 

to take pills. (Tr. 216). She cooks “[e]asy meals” depending on “[the] day and how I 

feel,” and performs “[e]asy tasks” around the house, like wiping counters, but sometimes 

performs no chores for days or weeks. (Id.). Harris stated that she can go out alone, but 

generally stays home due to feeling “paranoid around people.” (Tr. 217). She is able to 

drive, but prefers not to do so because of paranoia; she sometimes visits stores for 

household goods and food, but generally “stay[s] home and isolate[s]” herself. (Id.). She 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 14 of 35 Pg ID 567
15

further reported that her bipolar disorder results in “impulsive and then forgetful” spells, 

such that she is unable to pay bills. (Id.). In terms of hobbies, she reported “some days no 

hobbies or interests. I get so depressed, I lose all will to live,” whereas “[o]ther times, 

maybe reading, being with family.” (Tr. 218). She spends time with her husband, and 

family members occasionally visit her. (Id.). In terms of physical limitations, Harris 

asserted that her “[p]ain makes it difficult to lift [or] stand,” and that even “sitting can be 

hard, too.” (Tr. 219). Regarding mental limitations, she asserted that she becomes 

“restless” and will “forget to do things,” along with difficulty focusing such that she feels 

like she is “all over the place.” (Id.). She can pay attention for “[v]ery short periods,” 

does not finish what she starts, and regarding her ability to follow written instructions, 

she wrote “bad.” (Id.). Harris corroborated this assertion by failing to complete large 

segments of the function report form. Regarding unusual fears, she reported that she fears 

“[g]oing outside, being in crowds or around people” because she “get[s] real nervous and 

paranoid.” (Tr. 220). 

b. Harris’ Testimony at the Administrative Hearing

At the December 18, 2012, hearing before the ALJ, Harris testified that she lives 

in a second floor apartment, and must lean on a wall to climb the stairs to reach her home. 

(Tr. 58). Harris stated that she does not leave home frequently, perhaps once per week. 

(Id.). She washes some clothing in the sink rather than traveling two flights of stairs 

down to the laundry room in her building because of knee pain. (Tr. 60-61). However, 

she later testified to being able to perform all of her own personal needs, including 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 15 of 35 Pg ID 568
16

bathing, brushing her hair, and dressing without assistance. (Tr. 62). Harris asserted that 

she goes grocery shopping weekly, and is able to drive, but prefers not to do so. (Id.). She 

also testified that she helps her husband with household chores “[m]aybe three times out 

of the week,” and otherwise does not participate in chores because she is “usually in the 

bed.” (Tr. 75-76). However, she also asserted that she generally spends six days a week 

in bed “from 7:00 a.m. to the next day. I just stay in the bed all day,” and only gets up “to 

go use the restroom . . . or to go answer the phone.” (Tr. 76). Harris testified that she had 

been fired from her prior position as a receptionist because of knee pain following a car 

accident, and was unable to secure work as a nail technician because she could not work

quickly enough. (Tr. 63, 67-68). When asked whether she could work as a receptionist, 

Harris testified “probably so,” if she could “get rid of the paranoia.” (Tr. 68). The ALJ 

inquired into Harris’ physical condition and her ability to sit and lift, but Harris asserted 

that the main problem keeping her from working was “[t]he depression and the bipolar.” 

(Tr. 73, 78-80). Harris asserted that her memory was “a little slow,” and that she is 

sometimes able to follow television programs like the news, but other times finds herself 

dozing off. (Tr. 74). She is able to use a computer, but chooses not to do so. (Id.). Harris 

confirmed that her paranoia results in problems trusting others, but, she also stated that 

this mistrust is generally directed towards crowds, and that she has a “good” relationship 

with her husband and family members. (Tr. 75). She stated that she sometimes suffers 

from panic attacks when “in a crowded area . . . like at the supermarket,” because she 

feels “that somebody’s watching me or too close, and [she will] start to perspire.” (Tr. 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 16 of 35 Pg ID 569
17

77). However, she clarified that she does not experience panic attacks when outside the 

home in an uncrowded area. (Tr. 77-78). When asked why she generally refuses to leave 

home, Harris testified “I really couldn’t tell you. I don’t know why I don’t. Other than I 

just don’t want to go nowhere.” (Tr. 78).

At the July 19, 2013, hearing before the ALJ, Harris reported that she was doing 

“[t]he same” as she was during the first hearing. (Tr. 39). She reported that she continued 

to “stay in the bed all the time,” does not take full showers or baths, and does little 

besides lie in bed in the dark. (Tr. 40). Harris confirmed that she had missed 

appointments due to her paranoia “[a] couple of times” within the two months prior (Tr. 

41). Harris also asserted that her sleep quality had deteriorated, and that she sometimes 

went several days without sleep. (Tr. 42). Harris stated that she becomes nervous at the 

idea of working full time because she felt that she would “go through the same problems 

of people plotting against me like they did at . . . my last job,” though she did not 

attribute this nervousness to paranoia. (Tr. 42-43). When asked whether she would be 

able to leave home to attend work every day, Harris testified that doing so would be “real 

hard” because she could not get a ride and “do[es not] really like driving.” (Tr. 43). She 

also asserted that she has experienced trembling in her hands since she was eleven or 

twelve years old. (Tr. 44). Harris confirmed that she can “somewhat” follow television 

programs she watches, but that when reading she must “go over the pages a couple of 

times” to understand the contents. (Tr. 46). Harris stated that she still hears voices 

speaking to her on occasion, and recently believed that her husband was calling to her 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 17 of 35 Pg ID 570
18

when he was not there. (Tr. 46-47). She further asserted that “my aunt told me that I 

shouldn’t be worried because it’s just God talking to me.” (Tr. 47). 

c. The VE’s Testimony at the Administrative Hearing

The ALJ then asked the VE a series of questions to determine Harris’ ability to 

perform work. (Tr. 80-85). The ALJ asked the VE to consider whether a hypothetical 

worker, who has the same education, age, and past work experience as Harris could 

perform competitive work. (Tr. 81). Specifically, the ALJ asked the VE to hypothesize a 

person who has the ability to perform light work, and who is subject to the following 

restrictions:

No climbing ladders, ropes or scaffolds, occasionally climb 

ramps or stairs. Occasionally balance, stoop, crouch, kneel, and 

crawl. Avoid concentrated use of machinery. Avoid 

concentrated exposure to unprotected heights. And his work 

would be limited to simple, routine, and repetitive tasks, 

employed in a low-stress job, defined as having only 

occasional decision making required, only occasional changes 

in the work setting, with only occasional interaction with the 

public and with co-workers.

(Tr. 81-82). The VE testified that such a worker could not perform Harris’ past relevant 

work as a nail technician, which was semi-skilled work, whereas the hypothetical worker 

is limited to unskilled work. (Tr. 82). The VE then confirmed that such a worker could 

perform assembly jobs (726,000 nationally), visual inspection jobs (198,000 nationally), 

and packaging jobs (429,000 nationally). (Id.). The ALJ then modified the hypothetical 

such that the worker would be limited as follows: “this hypothetical individual is able to 

lift up to ten pounds occasionally, standing or walking for approximately two hours per 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 18 of 35 Pg ID 571
19

eight-hour workday, and sitting for approximately six hours per eight-hour workday, 

with normal breaks,” and also asked the VE to incorporate all those nonexertional 

limitations from the first hypothetical. (Id.). The VE replied that such a worker could 

perform some assembly jobs (198,000 nationally), some visual inspector jobs (99,000 

nationally), and some packaging jobs, (138,000 nationally). (Tr. 83). The ALJ then added 

that the hypothetical worker would be off task more than twenty percent of the time; the 

VE confirmed that such a restriction would be work prohibitive. (Id.). The VE further 

asserted that workers are generally provided with two fifteen minute breaks during an 

eight-hour workday, that employers would accept a maximum of two absences from 

work per month, and that exceeding these limits on a regular basis would eliminate all 

competitive work. (Tr. 84). Harris’ attorney then inquired as to whether a limitation to 

occasional use of the hands because of shakiness would preclude any competitive work, 

and the VE confirmed that it would. (Tr. 85). 

F. Governing Law

The ALJ must “consider all evidence” in the record when making a disability 

decision. 42 U.S.C. § 423(d)(5)(B). The regulations carve the evidence into various 

categories, “acceptable medical sources” and “other sources.” 20 C.F.R. § 404.1513. 

“Acceptable medical sources” include, among others, licensed physicians and licensed or 

certified psychologists. Id. § 404.1513(a). “Other sources” include medical sources who 

are not “acceptable” and almost any other individual able to provide relevant evidence. 

Id. § 404.1513(d). Only “acceptable medical sources” can establish the existence of an 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 19 of 35 Pg ID 572
20

impairment. SSR 06-03p, 2006 WL 2329939, at *2. Both “acceptable” and nonacceptable sources provide evidence to the Commissioner, often in the form of opinions 

“about the nature and severity of an individual’s impairment(s), including symptoms, 

diagnosis and prognosis, what the individual can still do despite the impairment(s), and 

physical and mental restrictions.” Id. at *2. When “acceptable medical sources” issue 

such opinions, the regulations deem the statements to be “medical opinions” subject to a 

multi-factor test that weighs their value. 20 C.F.R. § 404.1527. Excluded from the 

definition of “medical opinions” are various decisions reserved to the Commissioner, 

such as whether the claimant meets the statutory definition of disability and how to 

measure his or her residual functional capacity. Id. at 404.1527(d). 

The ALJ must use a six-factor balancing test to determine the probative value of 

medical opinions from acceptable sources. 20 C.F.R. § 404.1527(c). The test looks at 

whether the source examined the claimant, “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 

specialization of the treating source.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 

(6th Cir. 2004). See also 20 C.F.R. § 404.1527(c). ALJs must also apply those factors to 

“other source” opinions. See Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 540-42 (6th 

Cir. 2007); SSR 06-3p, 2006 WL 2329939, at *2. 

Certain opinions of a treating physician, in contrast, receive controlling weight if 

they are “well-supported by medically acceptable clinical and laboratory diagnostic 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 20 of 35 Pg ID 573
21

techniques” and are “not inconsistent with the other substantial evidence in [the] case 

record.” 20 C.F.R. § 404.1527(d)(2). See also Wilson, 378 F.3d at 544. The only opinions 

entitled to dispositive effect deal with the nature and severity of the claimant’s 

impairments. 20 C.F.R. § 404.1527(d); SSR 96-2p, 1996 WL 374188, at *1-2. Therefore, 

the ALJ does not owe a treating opinion deference on matters reserved to the 

Commissioner. 20 C.F.R. § 404.1527(d); SSR 96-2p, 1996 WL 374188, at *1-2. The ALJ 

“will not give any special significance to the source of an opinion” regarding whether a 

person is disabled or unable to work, whether an impairment meets or equals a Listing, 

the individual’s RFC, and the application of vocational factors. 20 C.F.R. § 

404.1527(d)(3). 

The regulations mandate that the ALJ provide “good reasons” for the weight 

assigned to the treating source’s opinion in the written determination. 20 C.F.R. § 

404.1527(c)(2). See also Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 875 (6th Cir. 

2007). Therefore, a decision denying benefits

must contain specific reasons for the weight given to the treating 

source’s medical opinion, supported by the evidence in the case 

record, and must be sufficiently specific to make clear to any 

subsequent reviewers the weight the adjudicator gave to the treating 

source’s opinion and the reasons for that weight. 

SSR 96-2p, 1996 WL 374188, at *5 (1996). See also Rogers, 486 F.3d at 242. For 

example, an ALJ may properly reject a treating source opinion if it lacks supporting 

objective evidence. Revels v. Sec. of Health & Human Servs, 882 F. Supp. 637, 640-41 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 21 of 35 Pg ID 574
22

(E.D. Mich. 1994), aff’d, 51 F.3d 273, 1995 WL 138930, at *1 (6th Cir. 1995) 

(unpublished table decision).

An ALJ must analyze the credibility of the claimant, considering the claimant’s 

statements about pain or other symptoms with the rest of the relevant evidence in the 

record and factors outlined in Social Security Ruling 96-7p. Credibility determinations 

regarding a claimant’s subjective complaints rest with the ALJ. See Siterlet v. Sec’y of 

Health & Human Servs., 823 F.2d 918, 920 (6th Cir. 1987). Generally, an ALJ’s 

credibility assessment can be disturbed only for a “compelling reason.” Sims v. Comm’r 

of Soc. Sec., No. 09-5773, 2011 WL 180789, at *4 (6th Cir. Jan. 19, 2011) (citing Smith 

v. Halter, 307 F.3d 377, 379 (6th Cir. 2001)); Warner v. Comm’r of Soc. Sec., 375 F.3d 

387, 390 (6th Cir. 2004). 

The Social Security regulations establish a two-step process for evaluating 

subjective symptoms, including pain. 20 C.F.R. § 404.1529; SSR 96-7p, 1996 WL 

374186, at *2. The ALJ evaluates complaints of disabling pain by confirming that 

objective medical evidence of the underlying condition exists. The ALJ then determines 

whether that condition could reasonably be expected to produce the alleged pain or 

whether other objective evidence verifies the severity of the pain. See 20 C.F.R. § 

404.1529; SSR 96-7p, 1996 WL 374186, at *2; Stanley v. Sec’y of Health & Human 

Servs., 39 F.3d 115, 117 (6th Cir. 1994). The ALJ ascertains the extent of the workrelated limitations by determining the intensity, persistence, and limiting effects of the 

claimant’s symptoms. SSR 96-7p, 1996 WL 374186, at *2. 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 22 of 35 Pg ID 575
23

While “objective evidence of the pain itself” is not required, Duncan v. Sec’y of 

Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986) (quotation omitted), a 

claimant’s description of his physical or mental impairments alone is “not enough to 

establish the existence of a physical or mental impairment,” 20 C.F.R. § 404.1528(a). 

Nonetheless, the ALJ may not disregard the claimant’s subjective complaints about the 

severity and persistence of the pain simply because they lack substantiating objective 

evidence. SSR 96-7p, 1996 WL 374186, at *1. Instead, the absence of objective 

confirming evidence forces the ALJ to consider the following factors:

(i) [D]aily activities;

(ii) The location, duration, frequency, and intensity of . . . pain;

(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any 

medication . . . taken to alleviate . . . pain or other symptoms;

(v) Treatment, other than medication, . . . received for relief of . . . 

pain;

(vi) Any measures . . . used to relieve . . . pain.

20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). See also Felisky v. Bowen, 35 F.3d 1027, 

1039-40 (6th Cir. 1994); SSR 96-7p, 1996 WL 374186, at *3. Furthermore, the 

claimant’s work history and the consistency of his or her subjective statements are also 

relevant. 20 C.F.R. § 404.1527(c); SSR 96-7p, 1996 WL 374186, at *5.

The claimant must provide evidence establishing her RFC. The statute lays the 

groundwork for this, stating, “An individual shall not be considered to be under a 

disability unless he [or she] furnishes such medical and other evidence of the existence 

thereof as the Secretary may require.” 42 U.S.C. § 423(d)(5)(A). See also Bowen, 482 

U.S. at 146 n.5. The RFC “is the most he [or she] can still do despite his [or her] 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 23 of 35 Pg ID 576
24

limitations,” and is measured using “all the relevant evidence in [the] case record.” 20 

C.F.R. § 404.1545(a)(2). A hypothetical question to the VE is valid if it includes all 

credible limitations developed prior to Step Five. Casey v. Sec. of Health & Human 

Servs., 987 F.2d 1230, 1235 (6th Cir. 1993); Donald v. Comm’r of Soc. Sec., No. 08-

14784-BC, 2009 WL 4730453, at *7 (E.D. Mich. Dec. 9, 2009).

G. Analysis 

Harris argues that the ALJ erred in the following ways: 1) inaccurately 

characterizing Harris’ medical records by finding that she failed to participate in mental 

health treatment until one month after her date last insured; 2) failing to determine 

whether there was a justifiable cause for Harris’ failure to seek treatment; 3) ignoring 

evidence regarding Harris’ mental condition produced after her date last insured; and 4) 

failing to account for Harris’ moderate limitations in concentration, persistence, and pace 

due to poor memory and short attention span. (Doc. 11 at 12-20). These arguments will 

be addressed in turn. 

1. The ALJ Did Not Mischaracterize Harris’ Mental Treatment Records

First, Harris argues that the ALJ undersold the frequency and seriousness of her 

mental health treatment, and thus improperly understated the seriousness of her mental 

disorders. (Doc. 11 at 12-15). Harris quotes the ALJ’s decision wherein he stated, in 

relevant part: 

“The record showed complaints of depression and bipolar disorder since at 

least 2006 but there are issues with non-compliance and inconsistent 

treatment for depression. . . . The claimant was referred to psychiatric 

treatment in February 2010 but treatment notes dated through November 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 24 of 35 Pg ID 577
25

2010 showed that the claimant still had not attended any therapy . . . . in fact, 

the claimant failed to participate in any mental health treatment until one 

month after her date last insured in July 2011, which suggests that her 

symptoms were not interfering in her daily activities until that time.” 

(Tr. 27). Harris asserts that “[t]his is a vastly understated account of the record” of her 

mental health treatment. (Doc. 11 at 13). She cites medical records stretching back to her 

2006 visits to The Guidance Center which show both depression and bipolar disorder in 

addition to reports that she wanted to sleep all day, had feelings of guilt, minimal 

motivation to do household chores, crying spells, sadness, paranoid delusions, and 

suicidal tendencies. (Id.). Recognizing the sparseness of her mental health records in 

2008 and 2009, Harris notes that she “did treat at times and often included issues with 

depression or insomnia in her reports to the treating staffs [sic].” (Id.). Harris counts four 

occasions during these years in which she referenced depression, insomnia, bipolar 

disorder, or anxiety during treatment at Henry Ford Health System. (Id. at 13-14). She 

also notes one record in May 2011 wherein she referenced chronic insomnia, fatigue, and 

sleepiness. (Id. at 14). Harris thus concludes that the ALJ’s characterization of this record 

as reflecting “very little treatment during the relevant time period between the alleged 

onset date of disability and the expiration of claimant’s date last insured” is inaccurate 

(Id. at 13-15; Tr. 28). 

The Commissioner argues that Harris received no mental health treatment between 

her alleged date of disability and date last insured, and that in the broader 2006 to 2011 

period her treatment ranged from “sporadic to nonexistent.” (Doc. 12 at 7). This 

argument over the definition of the word “inconsistent” is something of a sideshow, 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 25 of 35 Pg ID 578
26

because the ultimate question the Court must answer is whether Harris has demonstrated 

that she was disabled during her period of DIB eligibility, and ultimately whether the 

ALJ’s decision is supported by substantial evidence. This analysis must be conducted on 

a holistic basis, comparing not merely the number of treatment sessions but also the 

findings of the physicians in those sessions, the consistency of Harris’ alleged symptoms, 

her credibility, and other relevant evidence. To this end, the Court will examine the 

ALJ’s mental impairment findings in detail. 

The ALJ found that Harris suffered from “mild” restrictions in terms of activities 

of daily living and social functioning, noting that she was able to “maintain her own 

personal needs and grooming/hygiene with some reminders, take medication using 

reminder notes, prepare simple meals for herself, shop in stores for food, and socialize 

with friends and family.” (Tr. 25). He also noted that she has moderate limitations in 

concentration, persistence, and pace “due to poor memory and short attention span.” (Id.). 

Harris does not explicitly dispute these characterizations, and they are well supported by 

the medical records. Harris did not treat for any mental conditions between her alleged 

onset date and date last insured. Those treatment sessions she cites prior to this period 

also do not corroborate her allegations. Harris was treated in early 2006 following a 

suicide attempt, but a relatively moderate GAF score of 51 was assessed just weeks 

thereafter. (Tr. 264-67). Harris’ March 5, 2008, treatment notes reflect that she was 

started on an antidepressant medication one month prior; she no longer experienced 

suicidal ideation, but had not experienced an increase in motivation; she was prescribed a 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 26 of 35 Pg ID 579
27

second anti-depressant medication. (Tr. 363-64). Harris treated for breathing issues in 

October 2008, and noted that her depression issues had improved. (Tr. 357). In December 

2008 Harris returned for a check-up following surgery, and merely noted that she had 

“great difficulty sleeping,” and that “the only [medication] that has helped her 

[depression] recently is Xanax.” (Tr. 354). In February 2009 she sought treatment for nail 

fungus, and also complained of difficulty sleeping. (Tr. 349). In October 2009 she sought 

treatment for “depression and anxiety,” particularly complaining of crying spells, fatigue, 

tiredness, and increasing anxiety.” (Tr. 404). She “attributed this to multiple factors” 

including stressful training as a nail technician and that she was “going through a portion 

of bankruptcy in her family.” (Id.). Harris confirmed that she was no longer experiencing 

suicidal tendencies, but “has been crying a lot,” and “sometimes she hears people 

whispering and talking to her.” (Tr. 404). Dr. Campbell cautioned Harris that she “really 

needs to follow up with Behavioral Services,” apparently indicating that she had not 

sought regular treatment for her depression symptoms. (Id.). Medical records indicate that 

Harris apparently did not seek treatment for her mental health from October 2009 until 

May 2011, at which time she again mentioned sleep issues during a follow up 

appointment regarding lymphadenitis and furuncle of the neck; Harris made no mention 

of her depression symptoms during that treatment session. (Tr. 391-92). While Harris’ 

treatments after her date last insured are not highly probative of her wellbeing during the 

relevant period, they can be used to demonstrate that her prior treatment notes are 

representative of her overall wellbeing. While Harris reported feelings of depression, 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 27 of 35 Pg ID 580
28

memory deficits, hopelessness, emptiness, and hearing voices in July 2011 (Tr. 304-06), 

she reported better sleep, more motivation, good mood, and no concentration or memory 

issues in August 2011 (Tr. 309-10), and stated that “things [were] going well” and that 

she had the motivation to “get up and do things” in September 2011. (Tr. 333-34). Harris 

experienced, by her own estimation, some “up and down” times during late 2011 and 

early 2012 (Tr. 331), including occasional paranoia and lack of motivation (Tr. 326-28, 

345, 341-43), but also sometimes reported improvements in sleep quality, the elimination 

of panic attacks, and an improving mood. (Tr. 318, 342, 338). 

As the ALJ properly noted, Harris also showed fairly consistent improvement in 

her GAF score throughout her treatment sessions. (Tr. 27). In 2006 Harris’ GAF score 

was rated at 50 (Tr. 279), between July and December 2011 it registered at 45, 50, 55, 

and 60 (Tr. 301, 307, 311, 335, 329), and in 2012 it ranged from 45 to 60; in her last visit 

was assessed at 55. (Tr. 324, 322, 343). In her March 2012 RFC assessment, Dr. Tripi 

rated Harris’ GAF score at 46 (Tr. 315), and in his January 2013 RFC assessment Dr. 

Bray rated it at 60 (Tr. 437-38). No GAF scores were produced in the relevant period 

between Harris’ alleged onset date of September 20, 2010, and her date last insured, June 

30, 2011. However, it is clear from the general trend that Harris’ mental health condition 

was on the upswing throughout her mental health treatment. In short, the available 

medical evidence simply does not support the degree of limitation which Harris asserts. 

Rather, it demonstrates that Harris has made significant strides in combatting her 

depression, and has sought only occasional treatment over the course of several years. 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 28 of 35 Pg ID 581
29

As the ALJ also correctly noted, Harris’ reported activities of daily living do not 

corroborate the alleged severity of her mental conditions. (Tr. 25). Harris asserted at the 

first hearing before the ALJ that she is able to perform all personal grooming activities 

without assistance, grocery shops weekly, helps perform chores around the house thrice 

weekly, can drive, gets along well with family, and is sometimes able to follow the 

proceedings of television programs. (Tr. 62-75). At the second hearing, she further states 

that she is capable of reading books, but must sometimes “go over the pages a couple of 

times.” (Tr. 46). In her function report, Harris reported that she enjoys spending time with 

family. (Tr. 218). The ALJ used these inconsistencies to impugn Harris’ credibility. As 

the Court will examine below, this too was proper. 

2. The ALJ Did Not Err By Failing to Apply SSR 82-59

Harris next argues that the ALJ erred by failing to “determine whether there was a 

‘justifiable cause’ for the noncompliance before using it to discredit or deny her claim” 

pursuant to SSR 82-59. (Doc. 11 at 16). She further argues that the ALJ “did not consider 

whether the plaintiff’s lack of further treatment might have been caused by the very 

condition that necessitated the treatment” because her “panic disorder and agoraphobia . . 

. would (or at least could) have prevented her from leaving home to seek treatment when 

not absolutely essential.” (Id.). The speculative phrasing of this argument is not mere 

coincidence; while several medical providers opined that Harris failed to attend or put 

much effort forth in treatment sessions, none of them suggested that her mental 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 29 of 35 Pg ID 582
30

conditions might be the cause of those failings. Regardless, Harris’ argument fails 

because SSR 82-59 simply does not apply. SSR 82-59 provides:

An individual who would otherwise be found to be under a disability, 

but who fails without justifiable cause to follow treatment prescribed 

by a treating source which the Social Security Administration (SSA) 

determines can be expected to restore the individual's ability to work, 

cannot by virtue of such ‘failure’ be found to be under a disability.

S.S.R. 82–59, 1982 WL 31384, at *1. Thus, [f]inding that a claimant has a disabling 

impairment is the necessary trigger for an analysis under SSR 82–59.” Baker v. Astrue, 

No. 3:09-CV-405, 2010 WL 1818045, at *5 (S.D. Ohio Apr. 15, 2010); see also Mullen 

v. Comm’r of Soc. Sec., No. 13-14479, 2015 WL 1530778, at *7 (E.D. Mich. Mar. 31, 

2015). The ALJ did not find that Harris would be under a disability but for her failure to 

seek treatment, but rather used her failure to seek treatment as one factor in discounting 

the credibility of her alleged symptoms. (Tr. 27-28). Specifically, the ALJ found that the 

“nature and frequency” of Harris’ mental health treatment was inconsistent with claims 

and that the “scant findings” from those treatment sessions showed that her symptoms 

were of a “moderate nature that were treated conservatively.” (Tr. 28). An ALJ may 

consider the frequency and type of treatment a claimant seeks in determining the 

credibility of his or her alleged symptoms because “[i]n the ordinary course, when a 

claimant alleges pain so severe as to be disabling, there is a reasonable expectation that 

the claimant will seek examination or treatment.” Strong v. Soc. Sec. Admin., 88 F. App’x 

841, 846 (6th Cir. 2004); see also McKenzie v. Comm’r of Soc. Sec., No. 13-CV-11272, 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 30 of 35 Pg ID 583
31

2014 WL 4793884, at *4 (E.D. Mich. Sept. 25, 2014). The ALJ did precisely that, and 

thus did not err.

3. The ALJ Did Not Err by Giving Little Weight to Medical Records 

Produced After Harris’ Date Last Insured

Next, Harris argues that the ALJ erred by “effectively ignor[ing] all the evidence 

concerning plaintiff’s mental condition after her date last insured, giving it all ‘limited 

weight.’” (Doc. 11 at 17). The Sixth Circuit has firmly established that “[e]vidence of 

disability obtained after the expiration of insured status is generally of little probative 

value.” LaRiccia v. Comm’r of Soc. Sec., 549 F. App’x 377, 379 (6th Cir. 2013). Such 

evidence is relevant only insofar as it “relates back” to the insured period, which is to say 

insofar as it demonstrates that the claimant was actually disabled during the insured 

period. Wirth v. Comm'r of Soc. Sec., 87 F. App'x 478, 480 (6th Cir. 2003). If the 

claimant becomes disabled after their date last insured, the claim must be denied. See

Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990). Harris’ records are similar to 

those examined in Strong v. Soc. Sec. Admin., 88 F. App’x 841, 845 (6th Cir. 2004), 

wherein the Sixth Circuit noted that “even after the expiration of Claimant’s insured 

status, medical evidence suggested his ability to engage light to moderate work. But more 

importantly, as to the relevant time period, there is substantial evidence for the ALJ’s 

conclusion that Claimant was capable of a limited range of medium level work.” As 

discussed above, both the medical evidence produced before Harris’ date of alleged 

disability and after her date last insured support the ALJ’s conclusion that she is not 

disabled, and no medical evidence was produced between those dates. The ALJ thus 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 31 of 35 Pg ID 584
32

properly gave little weight to the evidence produced after Harris’ date last insured, and no 

evidence suggests that she was disabled at any point. 

4. The ALJ Did Not Fail to Account for Harris’ Moderate Limitations to 

Concentration, Persistence, or Pace 

Finally, Harris argues that the ALJ erred by recognizing that she experiences 

“moderate limitations to concentration, persistence, and pace due to poor memory and 

short attention span” but failing to appropriately account for those limitations in the RFC 

assessment. (Doc. 11 at 18; Tr. 25). Specifically, Harris argues that the ALJ’s restriction 

to “simple, routine, and repetitive work with limited dealing with the public” cannot 

compensate for her moderate concentration and memory deficits. (Id.). She also argues 

that the jobs the ALJ found she could perform “would require at least some degree of 

concentration in order to permit the appropriate completion of the tasks involved, within 

quota. Adding in a finding of memory loss would be equally important. [Thus a] 

limitation to simple, routine, and repetitive work does not address the degree of limitation 

necessitated by the ALJ’s own findings.” (Id. at 19-20). The question of whether 

restrictions similar to these can accommodate a finding of moderate limitations to 

concentration, persistence, or pace have been addressed frequently in this district. 

Restating the history of those cases once again would be unnecessarily duplicative. See 

Leidlein v. Comm’r of Soc. Sec., No. 14-10718, 2015 WL 1439810, at *9 (E.D. Mich. 

Mar. 27, 2015) (collecting cases); Brewer v. Comm’r of Soc. Sec., No. CIV.A. 10-14039, 

2011 WL 7546792, at *12 (E.D. Mich. Dec. 11, 2011) (same); McNamara v. Comm’r of 

Soc. Sec., No. CIV.A. 11-10331, 2011 WL 7025855, at *12 (E.D. Mich. Dec. 1, 2011) 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 32 of 35 Pg ID 585
33

(same). Suffice it to say that “there is no bright-line rule requiring remand whenever an 

ALJ's hypothetical includes a limitation of ‘unskilled work’ but excludes a moderate 

limitation in concentration. Rather, this Court must look at the record as a whole and 

determine if substantial evidence supports the ALJ's decision.” Taylor v. Comm’r of Soc. 

Sec., 2011 WL 2682682 at * 7 (E.D. Mich. May 17, 2011). Courts have found no error 

where there is an “inconsistent record of difficulties with concentration, persistence or 

pace” and where there is a “dearth of evidence . . . that Plaintiff’s ‘moderate’ CPP rating 

would preclude her from performing all simple work.” Brewer v. Comm’r of Soc. Sec., 

No. CIV.A. 10-14039, 2011 WL 7546792, at *12 (E.D. Mich. Dec. 11, 2011); see also 

Mortzfield v. Comm’r of Soc. Sec., No. 12-15270, 2014 WL 1304991, at *10 (E.D. Mich. 

Mar. 31, 2014). 

As always, the claimant bears “the ultimate burden to establish an entitlement to 

benefits by proving the existence of a disability.” Hayes v. Comm’r of Soc. Sec., 357 F. 

App'x 672, 674 (6th Cir. 2009) (quotation omitted). Harris does not point to any portion 

of the record establishing that even a limitation to “simple, routine, and repetitive tasks in 

a low-stress work environment with only occasional decision-making required and only 

occasional changes in the work setting . . . [with] occasional interaction with the public 

and with coworkers” is insufficient to compensate for her mental limitations. (Tr. 26). 

Instead, she simply relies on the fact that the ALJ found that she has “moderate” CPP 

limitations due to “poor memory and short attention span.” (Doc. 11 at 18; Tr. 25). Like 

the plaintiff in Brewer, Harris’ memory and concentration issues appear to have been 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 33 of 35 Pg ID 586
34

sporadic. In July 2011 Harris was found to have moderate memory and concentration 

difficulties (Tr. 300); and in August and October 2011 she had no memory or 

concentration issues (Tr. 310, 331); in June 2012 she had moderate issues (Tr. 345); in 

August 2012 she was “forgetful at times” but had no concentration issues (Tr. 342); and 

in September 2012 she had mild memory and concentration issues (Tr. 336). Given these 

inconsistent findings of mild, moderate, or non-existent memory and concentration

problems, medical evidence simply does not support Harris’ assertion that she is unable 

to complete simple, routine, repetitive tasks in a low-stress environment. The ALJ’s RFC 

assessment accurately captures Harris’ limitations. The ALJ’s decision is thus supported 

by substantial evidence. 

H. Conclusion

For the reasons stated above, the Court RECOMMENDS that Harris’ Motion for 

Summary Judgment (Doc. 11) be DENIED, the Commissioner’s Motion (Doc. 12) be 

GRANTED, and that this case be AFFIRMED. 

III. REVIEW

Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, “[w]ithin 14 

days after being served with a copy of the recommended disposition, a party may serve 

and file specific written objections to the proposed findings and recommendations. A 

party may respond to another party’s objections within 14 days after being served with a 

copy.” Fed. R. Civ. P. 72(b)(2). See also 28 U.S.C. § 636(b)(1). Failure to file specific 

objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 34 of 35 Pg ID 587
35

140, 106 S. Ct. 466, 88 L. Ed.2d 435 (1985); Howard v. Sec’y of Health & Human Servs., 

932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The 

parties are advised that making some objections, but failing to raise others, will not 

preserve all the objections a party may 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, 1373 (6th Cir. 1987). Pursuant to E.D. 

Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge. 

Any objections must be labeled as “Objection No. 1,” “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.

Date: October 7, 2015 s/ patricia t. Morris

Patricia T. Morris

United States Magistrate Judge

CERTIFICATION

I hereby certify that the foregoing document was electronically filed this date 

through the Court’s CM/ECF system which delivers a copy to all counsel of record. 

Date: October 7, 2015 By s/Kristen Krawczyk 

 Case Manager to Magistrate Judge Morris

2:14-cv-14508-MFL-PTM Doc # 14 Filed 10/07/15 Pg 35 of 35 Pg ID 588